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Highview Parking - Here we go again (again)/Another win, 3-0


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These clowns just don't learn.

 

Received yet another PCN from them today, and have emailed them thus. Only this time, I've upped the stakes.

 

 

Dear Highview Parking.

 

 

Really?

 

Have your people got nothing better to do with their time?

 

 

With reference: Mickey Mouse ticket number.

Vehicle Registration:

 

 

 

I strongly suggest that you read all of the below previous correspondence, and then either, reply via email that this charge has been cancelled (save yourselves the cost of a stamp), issue me with a valid POPLA code which will cost you £27 (again via email will be fine, I'm not unreasonable) or take me to court which I can assure you, will cost you a great deal more.

 

I also strongly suggest that you a) check the whitelist for the site, both car parks. And b) manually add this vehicle to it if it is not already there.

 

 

 

I have copied in Andrew Lowrey, Yate Shopping Centre Manager, in the hope that he will see, and realise, that YSC have made the mistake of contracting an outfit of "highwaymen" to 'manage' the car parking at the centre.

 

Whilst I appreciate that parking should not be abused, which it would be by a minority, there has to be, and must be, a better way to 'enforce' parking restrictions on the site.

 

ANPR 'remote' enforcement is not the answer and will only serve to alienate genuine customers, and staff, to the detriment of the entire centre, and all of its retailers.

 

 

To Highview once again. As you're fully aware by now, I'm not the type to just roll over and pay up. Especially when the amount invoiced can in no way be justified. So I offer you 4 choices.

 

1. Cancel this charge, and never write to me again.

2. Issue me with a POPLA Code, which will cost you £27 and the BPA around £100 I believe. You will lose, purely on the grounds of GPEOL, and we both know this. Why waste the money?

3. Take me to county court. Where once again, you will lose. Or finally.

4. Keep harassing me, and I'll take you to court to put a stop to it.

 

 

Over to you.

 

 

Regards

 

Mr Dragonfly

Registered Keeper.

 

If I were them, I know which option I'd choose laugh.png

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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These clowns just don't learn.

 

Received yet another PCN from them today, and have emailed them thus. Only this time, I've upped the stakes.

 

 

 

 

If I were them, I know which option I'd choose laugh.png

 

Give me a clue :lol:

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  • 3 weeks later...
Give me a clue :lol:

 

Well, they went with.....

 

Ignore everything and send out a Charge Notice Reminder! ohmy.png

 

 

So I've emailed them again, let's see what they do this time happy.giflol.gif

 

Further copies to POPLA and The BPA for information only at this stage.

 

 

 

Dear Sirs.

 

After receiving your CHARGE NOTICE REMINDER in the post this morning, I refer you to my email of 17th September.

 

If I hear from your company again with anything other than a cancellation of this PCN and an undertaking to cease and desist from contacting me further, I shall be instigating a complaint to the BPA, and I shall be considering issuing you with a Letter Before Action.

 

I can assure you that neither are the 'empty threats' that I'm sure you're used to getting.

 

 

Further to the above.

 

As I requested a POPLA code from you on 17th September and you have failed to provide me with same, you are in breach the BPA CoP for AOS members.

 

Even on your own Charge Notice, under appeals and complaints procedure, you state:

 

"If you wish to appeal against this Charge Notice, you should submit your case in writing within 28 days from the date of this notice being issued. We aim to write back to you within 5 working days, but certainly no more than 10 working days after your representations have been received. We will hold any action on your Charge Notice until we have replied to your representations."

 

As there are no terms on your Charge Notice to the contrary, it must be accepted that "in writing" includes a response by email, and indeed, your section entitled "How to contact us" includes an email address which, by nature of its domain name @appealpcn.co.uk must be for people responding to you to make an appeal.

 

As I submitted my representations and specifically asked for a POPLA code on 17th September, you have failed to address the material fact, have failed to contact me, have failed to place the matter on hold until you have replied to me and have rather spectacularly failed to issue me with a valid POPLA code.

 

 

Under the BPA CoP for AOS members (Version 4 - February 2014)

 

Section 22.1

 

"Under the Code you must have procedures for dealing fairly, efficiently and promptly with complaints, challenges or appeals. The procedures must give drivers and keepers the chance to challenge a parking charge notice."

 

Section 22.4

 

"If a driver or keeper challenges a parking charge you must review the case and decide whether to:

uphold the parking charge and explain why it was issued and should therefore be paid, or

reduce or cancel the charge and take no further management action other than informing the driver."

 

Section 22.6

 

"When you receive a challenge about the issue of a parking charge, you must stop work on processing the charge immediately. You must not increase the charge until you have replied to the challenge."

 

Section 22.8

 

"You must acknowledge or reply to the challenge within 14 days of receiving it."

 

Section 22.12

 

"If you reject a challenge you must:

tell the motorist how to make an appeal to POPLA. This includes providing a template 'notice of appeal' form, or a link to the appropriate website for lodging an appeal and the 10-digit verification code."

 

#RK

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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It seems they don't tell their computer to stop the threatogramme cycle..!

Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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lol.gif

 

Whilst I realise that it will probably come to nothing, I've had an email today from the POPLA Liason Officer at the BPA.

 

Further to my email that I copied to the BPA, Highview are now being 'investigated' for breaching the Terms of the CoP for AOS members.

 

The email says...

 

I will investigate this matter with the operator as they should have provided you with either a POPLA code or confirmation the charge has been cancelled.

 

Once I have concluded my investigation I will be in touch.

 

 

Slapped wrists for someone at Highview then... Shame.

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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Slapped wrists indeed, and maybe slapped legs too!! :Cry:

Who ever heard of someone getting a job at the Jobcentre? The unemployed are sent there as penance for their sins, not to help them find work!

 

 

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Well, poking Highview with a stick seems to have had some effect. They have today issued me with a HOOPLA code.

 

However, seeing as I'm particularly bloody minded, I've emailed the BPA again to canvas their opinion on whether or not (with Highview having breached the CoP) I'd be within my rights to not play their game.

 

I've got my Hoopla appeal all lined up and ready to go anyway, but I think if I can get the support of the BPA, I might just tell Highview where they can insert it lol.gif

  • Haha 1

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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Well, as expected, the BPA have heard back from Highview (who have misinformed them) and have taken their side and closed the investigation, advising me to appeal to POPLA. Shock horror!

 

I have replied to the BPA, and CC'd Highview...

 

Dear BPA (name removed)

 

Highview are rather muddying the waters if that's what they've told you.

 

Their response on 7th August was for an entirely different Mickey Mouse PCN, and not this Mickey Mouse PCN. They completely failed to reply to my appeal regarding this Mickey Mouse PCN until poked with a stick by myself, and possibly you. And in the process breached the BPA CoP for AOS members.

 

I shall of course appeal to POPLA, in fact, I've had my appeal letter ready to submit since before I wrote to Highview, but the fact remains that as far as this Mickey Mouse PCN is concerned at least, they have failed to live up to the standards set by the BPA for members of the AOS.

 

Whilst I appreciate that the BPA is only a trade body and not regulatory, it seems absurd that an AOS member company (Highview) can flout the Codes of Practice at will and not be sanctioned for doing so.

 

Could you please supply me with an email address so that I can make a more formal complaint to the BPA regarding the actions of one of your AOS members. And if possible, also a contact at the DVLA for the same, as KADOE access to the #RK database seems to be dependant on users sticking to the rules of the CoP for AOS members, so I would also like to inform the DVLA that this is not the case.

 

Kind regards

 

Recorded Keeper

 

CC: Highview.

 

 

Having already had 2 Highview PCN's cancelled (by them) it seems like they now want to play hardball. It's almost tempting (maybe next time) to fudge my appeal to POPLA so that they're forced either to get back in their box, or take me to court. Which would mean an all expenses paid trip to the Bristol Justice Centre for me :D

 

But this time, I think I will be content with complaints to the BPA and DVLA, and beating them at POPLA. Next time however evil.gif

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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Obviously not following CoP makes it tricky for them to argue that they are following the rules of the gane when they arent. judges dont like it whan their court time is wasted by claims that could be settled elsewhere so go ahead and poke the BPA with another stick and if they dont respond they are making it harder for their member to win any claim against you in the future. Well done them!

Do use POPLA if you do get a suitable response though so you can waste some of their money.

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POPLA date 13th November thumbup.gif They obviously a bit of queue huh.png

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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And today's post brought with it a letter from Highview.

 

Dear Sir

 

With reference to the above stated Parking Charge Notice, this Notice has been cancelled in full and no further action will be taken.

 

We apologise sincerely for any inconvenience caused in this matter and can confirm this case has been closed.

 

Yours faithfully

 

Squiggle

 

Highview Parking Ltd.

 

Three - Nil to me then. They can't even win on the away goals rule biggrin.png I think I'd have to park the car sideways, across 3 spaces, upside down and on fire to actually get them to fight me lol.gif

 

 

If anyone is interested, this is what I sent to POPLA, which Highview have obviously seen.

 

Dear Sir/Madam,

 

I appeal against the decision of Highview Parking Ltd to reject my appeal because they have failed to follow the BPA code of practice and attempted to impose a penalty charge for either breach of contract or trespass as well as other matters.

 

Highview Parking does not own the car park in question and are therefore merely agents for the landowner or legal occupier. In their Notice and in the rejection letters, Highview Parking has not provided me with any evidence that they are lawfully entitled to demand money from a driver or keeper, since they do not own nor have any interest or assignment of title of the land in question.

 

I therefore require Highview Parking to provide a full copy of the actual contemporaneous, signed & dated contract with the landowner.

 

Contracts are complicated things, so a witness statement signed by someone is not good enough, neither is a statement that a person has seen it. A copy of the original, showing the points above is the only acceptable item as evidence that a contract exists and authorises Highview Parking the right, under contract, to write numerous letters to an appellant chasing monies without taking them to Court, to pursue parking charges in their own name, to retain any monies received from appellants and to pursue them through to Court.

 

Any signage provided on site by Highview Parking, I submit, should be seen as an 'invitation to treat' as in the case of Fisher v Bell 1961, and that without evidence of the invitation to treat having been accepted, there can be no breach of any alleged contract.

 

I further submit that any contract that Highview Parking do have is not compliant with the requirements set out in the BPA Code of Practice.

 

I do not believe that Highview Parking has the necessary legal capacity to enter into a contract with a driver (or Keeper) of a vehicle parking in the car park, or indeed the legal standing to allege a breach of contract. I humbly refer the Adjudicator to the recent Appeal Court decision in the case of Vehicle Control Services (VCS) v HMRC ( EWCA Civ 186 [2013]): The principal issue in this case was to determine the actual nature of Private Parking Charges.

 

It was stated that, "If those charges are consideration for a supply of goods or services, they will be subject to VAT. If, on the other hand, they are damages they will not be."

 

The ruling of the Court stated, "I would hold, therefore, that the monies that VCS collected from motorists by enforcement of parking charges were not consideration moving from the landowner in return for the supply of parking services."

 

In other words, they are not, as Highview Parking asserts, a contractual term. If they were a contractual term, Highview Parking would have to provide a VAT invoice, to provide a means of payment at the point of supply and to account to HMRC for the VAT element of the charge. I therefore assert that these requirements have not been met. It must therefore be concluded that Highview Parking's charges are in fact damages, or penalties, for which Highview Parking must demonstrate their actual, or genuine pre-estimated of losses, as set out above.

 

Highview Parking also make reference in their appeal refusal of 7th October 2014 to “paying the charge”, the only entity I seem to be able to pay is them. No correspondence or email that I have received from Highview Parking makes any reference to the landlord/landowner at all.

 

Item 7.1 of the BPA code of practice makes it a requirement that Highview Parking either own the land, or have the written authorisation of the landowner to enable them to operate on the land. I, as registered keeper, put Highview Parking to strict proof that a valid contract exists that enables them to act in this manner on behalf of the landowner. It is not an onerous task to produce the contract as section 8.1 of the code means it has to be available at all times.

 

The BPA Code of Practice indicates at paragraph 13.4 that the Respondent should, “allow the driver a reasonable period to leave the private car park after the parking contract has ended, before you take enforcement action.” The signage in the car park provides no indication of the period of time it allows and this is unreasonable, especially as Highview Parking rely on pictures taken of a vehicle at first arrival and then when leaving (not showing any evidence at all of actual parking). So, there is no evidence that the respondent can produce to indicate that my vehicle was parked for more than the arbitrary time limit they are relying upon, and no breach of contract by the driver can be demonstrated by their evidence at all. On that basis the sum claimed fails to meet the standards set out in paragraph 19 of the BPA Code of Practice.

 

19.5 of the code of practice states, “If the parking charge that the driver is being asked to pay is for a breach of contract or act of trespass, this charge must be based on the genuine pre-estimate of loss that you suffer,”

 

There was no parking charge levied, the car park is “free”. On the date of the claimed loss there were lots of empty spaces and there was no physical damage caused. There can have been no loss arising from this incident. Neither can Highview Parking lawfully include their operational day-to-day running costs in enforcing parking restrictions at the site (for example, by erecting signage and employing administration staff) in any 'loss' claimed. See VEHICLE CONTROL SERVICES LIMITED -v- MR R IBBOTSON and A Retailer v Ms B and Ms K, Oxford County Court. This does not represent a loss resulting from a breach of the alleged parking contract. In other words, were no breach to have occurred, the cost of parking enforcement would still have been the same. This has been quoted by POPLA itself in adjudication.

 

I therefore submit that there can be no loss shown whatsoever; no genuine pre-estimate of loss (prior to starting to 'charge for breaches' at this site) has been prepared or considered in advance.

 

The charge that Highview Parking has attempted to levy must be punitive and therefore void (i.e. unenforceable) against me. The initial charge is arbitrary and in no way proportionate to any alleged breach of contract. Nor does it even equate to local council charges for all day parking. This is all the more so for the additional charges which operator states accrues after 14 days of non-payment. This would also apply to any mentioned costs incurred through debt recovery unless it followed a court order. I would question that if a charge can be discounted by early payment that it is unreasonable to begin with.

 

Unlawful Penalty Charge.

 

Since there is no demonstrable loss/damage and yet a breach of contract has been alleged for a free car park, it can only remain a fact that this 'charge' is an attempt at extorting an unlawful charge to impersonate a parking ticket. This is similar to the decisions in several County Court cases such as Excel Parking Services v Hetherington-Jakeman (2008), also OB Services v Thurlow (review, February 2011), Parking Eye v Smith (Manchester County Court December 2011) and UKCPS v Murphy (April 2012) .

 

Highview Parking is either charging for genuine losses or it is a penalty/fine.

 

The signage on site states that parking is limited to 4 hours. But does not state no return, so a driver could, after 4 hours, drive out of the car park and then re-enter the car park and park for another 4 hours without charge. However, there is no option to stay for longer by paying. Thereby making any charge a clear penalty.

 

No contract with the driver.

 

There is no contract between Highview Parking and the driver, but even if there was a contract then it is unfair as defined in the Unfair Terms in Consumer Contracts Regulations 1999.. So the requirements of forming a contract such as a meeting of minds, agreement, certainty of terms, etc, were not satisfied.

 

Unfair terms.

 

The charge that was levied is an unfair term, and therefore not binding, pursuant to the Unfair Terms in Consumer Contracts Regulations 1999. In particular, Schedule 2 of those Regulations gives an indicative (and non-exhaustive) list of terms which may be regarded as unfair and includes at Schedule 2(1)(e) "Terms which have the object or effect of requiring any consumer who fails to fulfil his obligation to pay a disproportionately high sum in compensation." Furthermore, Regulation 5(1) states that: "A contractual term which has not been individually negotiated shall be regarded as unfair if, contrary to the requirement of good faith, it causes a significant imbalance in the parties' rights and obligations arising under the contract, to the detriment of the consumer" and 5(2) states: "A term shall always be regarded as not having been individually negotiated where it has been drafted in advance and the consumer has therefore not been able to influence the substance of the term."

 

Unreasonable.

 

The charge that was levied is an unreasonable indemnity clause pursuant to section 4(1) of the Unfair Contract Terms Act 1977 which provides that: "A person cannot by reference to any contract term be made to indemnify another person (whether a party to the contract or not) in respect of liability that may be incurred by the other for negligence or breach of contract, except in so far as the contract term satisfies the requirement of reasonableness.”

 

I further contend that Highview Parking have failed to show me any evidence that the cameras in this car park comply with the requirements of the BPA Code of Practice part 21 (ANPR) and would require POPLA to consider that particular section of the Code in its entirety and decide whether the Operator has shown proof of contemporaneous manual checks and full compliance with section 21 of the Code, in its evidence. I, as registered keeper, contend that these cameras and their operation do not meet the standards laid down in the BPA code of practice.

 

Further breaches of the BPA CoP for members of the AOS by Highview Parking.

 

When I originally received the Parking Charge Notice on 17th September, I appealed immediately by email to the email address on the rear of the Parking Charge Notice.

 

However, Highview Parking failed to acknowledge that appeal until 7th October, subsequent to a further email to them following my receipt of a Parking Charge Notice reminder and the intervention of the BPA POPLA Liaison Officer. (BPA Case number: BPA – 05995)

 

This is a breach of the BPA CoP for members of the AOS on the following grounds.

 

Section 22.6

 

"When you receive a challenge about the issue of a parking charge, you must stop work on processing the charge immediately. You must not increase the charge until you have replied to the challenge."

 

Section 22.8

 

"You must acknowledge or reply to the challenge within 14 days of receiving it."

 

 

With reference to Section 22.6. Whilst no acknowledgement of the appeal was sent to me, bar the automatic response via email that my email had been received, the Parking Charge Notice reminder had increased the charge from £40 to £80. Thereby breaching Section 22.6 of the BPA CoP.

 

With reference to Section 22.8. As above, no acknowledgement of the appeal was received until 7th October 2014. Thereby breaching Section 22.8 of the BPA CoP.

 

 

I would contend that this appeal should be allowed for these reasons.

  • Haha 1

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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well done you, still no answer to whether they have a contract covering the land where you parked. I'm sure that their contract for the rest of the site is defective and I know that the original landowner who donated the car park to the NT had stipulation about how it should be used and complained to the NT when his instructions were ignored.

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well done you, still no answer to whether they have a contract covering the land where you parked. I'm sure that their contract for the rest of the site is defective and I know that the original landowner who donated the car park to the NT had stipulation about how it should be used and complained to the NT when his instructions were ignored.

 

Interesting, can you tell me more? By PM if it's not public domain. thumbup.gif

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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parked there a couple of years ago, paid to park and got chatting to man walking nearby about private parking co's and how they rip people off. He then proceeded to tell me that he lived locally and had a dispute with the NT and that he previously owned the land that was the car park but had donated it to the NT for the benefit of the community. When they got the parking co involved he had a falling out with the people who brought them in as he felt it was damaging to the local community financially. He reckoned that they were trying to ban him from any NT land because he wouldnt let it rest. I believe that it was an honesty box system prior to that. No camera system in place when I visited

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I think we might be talking about different car parks... You seem to be talking about National Trust land, while I'm talking about Yate Shopping Centre. Which, as far as I'm aware, has never been owned by the National Trust :) I believe it's owned by Dominion Corporate Trust.

Please note that my posts are my opinion only and should not be taken as any kind of legal advice.
In fact, they're probably just waffling and can be quite safely and completely ignored as you wish.

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